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Whose flag are you burning?

Posted by Richard on June 23, 2005

Once again, the House has determined that this nation’s most pressing legal problem is flag burning. This year, some think the Senate may agree with them. [sigh]

Captain Ed declares that he’s reluctantly on the side of the ACLU on this and opposes the amendment. Good for him. Unfortunately, his primary reason is wrong, and it reveals a characteristic conservative misunderstanding of the nature of rights and government:

Second, and in my mind more important, the push for this amendment comes from Congress’ (correct) impulse to push back against an activist court that creates new rights and laws out of thin air. In this case, we have a court decision that made arson equivalent to political speech and untouchable by law, while a subsequent court ruled that actual political speech could be subject to prior restraint when conducted in conjunction with an election, thanks to the BCRA, John McCain, and Russ Feingold.

I’m sympathetic to a point — it’s outrageous for the Supremes to say that burning a flag is free speech, but that urging people to vote a certain way isn’t. But it’s the latter contention that’s the problem, not the former.

In fact, the solution here isn’t even an amendment. It is to nominate and confirm judges that not only will stop looking for emanations from penumbras that don’t exist in the Constitution and will respect the division of powers instead of creating laws themselves.

A comment by M. Simon (of Power and Control) slaps this argument down hard:

Emanations and penumbras come from Amendments IX and X.

If we repealed those and made it explicit that the only rights you have are those granted by government all these types of problems would go away.

Of course we would then be no better than France. But, hey, a small price to pay.

He’s fingered the problem with conservatives regarding the Constitution. They forget the natural rights foundation underlying the document. They forget that its purpose isn’t to grant rights, but to recognize and protect them. They forget that its authors told us to interpret the language dealing with the powers of government narrowly and the language dealing with the rights of the people broadly and expansively. They forget or ignore the 9th and 10th Amendments (except the "states’ rights" part), which were intended to ensure that we heeded that advice.  They forget or ignore Jefferson:

No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of society; and this is all the laws should enforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third…

…when the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right.

I have two problems with conservative complaints about activist judges "inventing new rights": First, why don’t I hear them complaining about judges "inventing new governmental powers"? Second, they fail to grasp that rights are neither invented nor created by the words of the Constitution; their whole conception of rights as a short list of narrowly defined words found in the first ten amendments is flawed, anti-liberty, and unAmerican.

Clarence Thomas understands; Antonin Scalia doesn’t. Thus we find Scalia, the judicial hero of conservatives, siding with the five liberals on the court in the outrageous Raich decision.

Joe Protestor’s right to burn a flag doesn’t depend on a court declaring arson to be speech or inventing freedom of expressive conduct. It depends on the answer to two questions: (1) Is Joe trespassing or otherwise violating someone else’s rights? (2) Whose flag is it?

If Joe Protestor isn’t trespassing, isn’t destroying someone else’s property, and isn’t otherwise violating anyone else’s rights, what business is it of Congress what he’s doing with his flag? As Jefferson would say, it "neither picks my pocket not breaks my bones," and thus is outside the law’s purvue.

Fundamentally, flag burning isn’t a free speech issue. Burning someone else’s flag is vandalism; burning your own is a property right.

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One Response to “Whose flag are you burning?”

  1. maybeso said

    About damned time someone finally painted the flag-burning argument clearly! Good job.

    I have always maintained that it is not up to anybody what a person does with his private property, whether it is a flag or a sheet or a house. It would be a different matter if it was another person’s flag he burned – without permission. We already have laws to deal with simple criminal matters. Trying to amend the constitution for a symbolic gesture is pissing in the wind, and it does not utilize our tax dollars and our time effectively. And everybody always overlooks the fact that defining, exactly, what constitutes a “flag” has always been a sticking point. If a person wants to burn a picture of a flag or a flag with only 49 stars or 12 stripes, etc., would it be illegal? It gets really silly when you think about it. They should spend that time and resources revamping our tax laws or something equally important to the entire country, and something that is within the congressional sphere.


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